Say 'NON' to Strict Liability
Following the dismissal of the appeal1 against the High Court's decision in Committeri v Club Mediterranee SA2 and Generali IARD SA (July 2016 briefing), we reinforce our advice to any companies providing package holidays to France to ensure that the contracts between them and the buyers of the holidays are governed by English law. They will then avoid the strict liability provisions of the Code de Tourisme for an injury sustained during the holiday.
Mr Committeri, an Italian national resident in London, issued a claim in the English High Court against Club Med and Generali for injuries to his foot and ankle sustained during an ice-climb on the Mer de Glace in Chamonix, France, in February 2011. The ice-climb was one of a number of activities included in a team-building trip arranged by Mr Committeri's then employers with Club Med. The contract between Mr Committeri's then employers and Club Med provided that the booking conditions were subject to English law and jurisdiction.
Shortly before trial, Mr Committeri abandoned his fault-based claims, leaving only his claim under the French Code de Tourisme (the "Code"), enacted to give effect to the Package Travel Directive. Article L211-16 of the Code imposes strict liability on the organiser for any injury suffered by a person on a package holiday. This is in striking contrast to the Package Travel Regulations in the UK which require a claimant to demonstrate either a failure to perform or the improper performance of the contract (i.e. fault).
The trial centred on the proper characterisation of Mr Committeri's claim under the Code. If it was contractual in nature, English law applied and he had no viable claim (Rome I Regulation); if it was non-contractual, French law applied because of the location of the accident and he would be entitled to judgment with damages to be assessed (Rome II Regulation).
The trial judge (Dingemans J) classified the French law right under Article L-211-16 of the Code as contractual, it being based entirely on the obligations freely undertaken by Club Med in the package holiday contract between it and Mr Committeri's then employers. He also made a number of findings of French law on the basis of the parties' French law experts' reports and case law which Mr Committeri had asked him to review and ruled that the choice of law agreement in the contract between Mr Committeri's then employers and Club Med precluded Mr Committeri from relying on his rights under French law.
He dismissed the claim and refused Mr Committeri permission to appeal.
Grounds of Appeal
Mr Committeri applied to the Court of Appeal for permission to appeal on three grounds:
Permission was granted on Grounds 1 and 2 only.
Issues on Appeal
The Court of Appeal also reviewed the more recent European authority, flightbright GmbH v Airnostrum Lineas Aereas del Mediterraneo SA6 in which the Advocate General said that what mattered was "whether the underlying original source of the rights and obligations which are being disputed and the reason that claim is being brought against the specific defendant follow from a contract". This, the Court of Appeal held, "neatly differentiated between the case where there may be a contract, but where that is a matter of background fact, of tangential relevance to the claim actually being brought; and the case where the contract itself is the underlying source of the rights and obligations being disputed".
The Court of Appeal also considered the English authorities, Hone v Going Places Leisure Travel Limited7 and X v Kuoni Travel Ltd8. As these cases make plain, questions of improper performance can only be determined by reference to the terms of the contract.
Applying all these cases, the Court of Appeal held that the contract between Mr Committeri's then employers and Club Med was not simply part of the factual background to the claim but the underlying source of the rights and obligations being disputed. The claim was based fairly and squarely in that contract and was therefore a contractual claim to which the Rome I Regulation applied.
Consequently the appeal was dismissed.
Paul Dean, Stephanie Schweitzer and Angelina Davidson-Houston of HFW represented Club Med.
Should you have any questions, please do not hesitate to contact the authors of this briefing.
-  EWCA Civ 1889.
- EHWC 1510 (QB).
-  I.L. Pr.20.
-  QB 753.
-  QB 252.
- C-274/16, C-447/16 and C-448/16 19 October 2017 and 7 March 2018.
-  EWCA Civ 947.
-  EWCA Civ 938.